Shamsu Miah and others Vs. Ministry of Housing ahd Public Works

Appellate Division Cases

(Civil)

PARTIES

Shamsu Miah and others represented by

The Constituted Attorney

Mohammed Hafizur Rahman and (11) others………………….. Appellants

vs

The Government of Bangladesh,

Represented by Secretary,

Ministry of Housing ahd Public Works …………………………Respondents

JUSTICE:

Ruhul Amin .J

K.M. Hasan. J

Md. Fazlul Haque. J

JUDGEMENT DATE: 14th December, 2002

Remand order – In Writ matters under Article 102 of the constitution Writ petitions can be remanded to the High Court Division for further hearing

The writ petitions are sent back to the High Court Division for fresh hearing upon affording opportunity to the writ petitioners to put forward their case as regards the documents i. e. Affidavits sworn by the officers denying genuineness of their signatures appearing in the papers relating to allotments and explaining the circumstances in which the officials signed the papers relating to allotments and placed by the respondent No. 1 before the High Court Division on the last day of hearing of the writ petitions and that also placed the same before the court without compliance of the procedure for placing papers and documents before the Court, but the High Court Division took notice of those and the Annexure (f), copy of which was not made available to the writ petitioners ….(9)

Civil Appeal Nos. 75-86 of 2002. (From the Judgment and order dated June 28,2001 passed by the High Court Division in Writ petition No. 5756 of 2000 [heard along with Writ Petition Nos. 5757, 5758, 5759, 5795, 5796. 5797, 5799, 5800, 5801, 5802 and 5803 of 2000]).

Khandker Mahbubuddin Ahmed, Senior Advocate, instructed by, Aftab Hossain, Advocate-on-record…………. For the appellants (in all the appeals)

Abdur Razzak, Additional attorney General, instructed by B. Hossain, Advocate-on-record …………………….For the respondents (in all the respondents)

JUDMGENT

1. Md Ruhul Amin , J:- These 12 appeals by leave have been filed against the common judgment and order dated June 28, 2001 of a Division Bench of the High Court Division Disposing of 12 writ petitions writ petition Nos. 5756, 5757, 5758, 5759, 5795, 5796, 5797, 5799, 5800, 5801, 5802 and 5803 of 2000. The High Court Division discharged the Rules obtained in the respective writ petitions. The Writ petitions were filed challenging legality of the letter dated November 16, 2000 issued under the signature of Assistant commissioner Housing and Settlement, Ministry of Housing and Public works, government of Bangladesh Canceling respective writ petitioner’s allotment of rehabilitation plot in Mohammadpur Housing Estate.

2. Facts in the background of which writ petitions were filed, in short, are that land of the respective writ petitioners or their predecessors were acquired by the government. Government in pursuant to the policy decision to rehabilitate some of such category of people curbed out rehabilitation plots out of the land earlier acquired. There upon allotment of plots were made to the petitioners of the respective writ petitions. These allotters deposited the amount mentioned in the letters of allotment. Thereupon the relevant authority made over possession of the plots so allotted to the respective writ petitioners. Thereafter allotment of the respective writ petitioners was cancelled.

3. The respective writ petitioners challenged legality of the order of cancellation rimarily contending that the said order was mollified and that was volative of the principle of natural justice since cancellation was made without serving any notice, and that also volative of the fundamental right guaranteed by article 42 of the constitution.

4. The rules issued in the respective writ petitions were opposed by the Government (writ-respondent No.l) contending, inter alia, that the allotment so claimed by the respective writ petitioners was product of fraud and as such by the so called allotments writ petitioners did not acquires any right in the land so claimed to have been allotted. It was also the case of the respondents No. 1 that signatures appearing in the papers relating to the allotment were denied by the concerned officials upon affirming affidavit before the Notary Public.

5. At the time of hearing of the writ petitions it was submitted from the side of the respective writ petitioners from the side of the respective writ petitioners that government took decision as back as in 1993 to rehabilitate some of the persons, including the writ petitioners, affected by the acquisition of their land and in pursuant to the said policy decision rehabilitation plots were allotted to the writ petitioners in the year 1999 and they deposited the entire amount mentioned in the letters of allotment in September 2000 and thereafter in October 2000 possession was handed over to the writ petitioners and that subsequent there to respondents upon taking the plea that the land of the rehabilitation plots allotted to the respective writ petitioners would be required in connection with the construction of flats for accommodation of the government officers and cancelled the allotments although possession was earlier made  over and as such the act of the respondents canceling allotments was illegal and without lawful authority.

6. The High court Division discharged the Rules primarily upon the view that the land of the plots allotted to the respective writ petitioners have been earmarked for implementation of the project construction of flats for accommodation of the government officials and as such there was no occasion for allotments of the land of the rehabilitation plots to the writ petitioners . The High Court Division also taking into consideration the papers filed from the side of the contesting respondent denying the genuineness of the papers relating to allotments was of the view that the allotments of the rehabilitation plots were obtained upon resorting to fraud and as such the order of cancellation of the allotments “does not call for interference”.

7. Leave was granted to consider the contention of the respective appellants that plea of fraud was taken by the respondent at a late stage of the hearing of the Rules contrary to the respondent’s own papers on record and that High Court division discharged the Rules obtained in the respective writ petitions withoutconsidering the said materials. It was the further contention of the respective appellants that the High Court Division in discharging the Rules took into consideration new papers and documents on the last day of hearing without giving opportunity to the writ petitioners to controvert the same and that High Court Division based its judgment on a document which was not at all party of the record.

8. The appeals, both in support of and opposition to, were argued elaborately. Upon hearing the parties to the appeals and perusing the judgment of the High Court Division as well as other materials on record we are of the vies that the writ petitions need be heard afresh by the High Court Division upon affording opportunity to the writ etitioners to controvert the contents of the papers i.e. Affidavits affirmed by the officials denying the genuineness of their signatures in documents relating to allotments and explaining the circumstances in the background where of they signed the papers pertaining to allotments (there is reference of these papers in the judgment of the High Court Division ) and that also for affording opportunity to the writ petitioners to put forward their case as against the material which was not part of the record, Annexure l(f) letter dated 19.11.2000 of the office of the chief Engineer, Housing Odhidapter, It may be mentioned the High Court Division based its judgment to a greater extent on Annexure l(f) . The appellants emphatically argued that in the copy of the supplementary affidavit of the Respondent No. 1 served on them Annexure l(f) was missing. This contention could not be disputed or denied by the respondent No. 1.

9. In the afar estate of the matter the appeals are allowed. The judgment and order of the High Court Division dated 28th June, 2001 disposing of the 12 writ petitions mentioned here above discharging the Rules are set aside. The writ petitions are sent back to the High Court Division for fresh hearing upon affording opportunity to the writ petitioners to put forward their case as regards the documents i. e. Affidavits sworn by the officers denying genuineness of their signatures appearing in the papers relating to allotments and explaining the circumstances in which the officials signed the papers relating to allotments and placed by the respondent No. 1 before the High Court Division on the last day of hearing of the writ petitions and that also placed the same before the court without compliance of the procedure for placing papers and documents before the Court, but the High Court Division took notice of those and the Annexure (f), copy of which was not made available to the writ petitioners. There is no order as to costs.

Ed.

Source: I ADC (2004),109

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